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THE NEED FOR IMPROVEMENTS AND MORE

INCENTIVES IN THE ENDANGERED SPECIES ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON RURAL ENTERPRISES, 

AGRICULTURE & TECHNOLOGY

OF THE

COMMITTEE ON SMALL BUSINESS 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

WASHINGTON, DC, SEPTEMBER 15, 2005

Serial No. 109–31

Printed for the use of the Committee on Small Business

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house 

COMMITTEE ON SMALL BUSINESS 

DONALD A. MANZULLO, Illinois, Chairman 

ROSCOE BARTLETT, Maryland, Vice 

Chairman 

SUE KELLY, New York 

STEVE CHABOT, Ohio 

SAM GRAVES, Missouri 

TODD AKIN, Missouri 

BILL SHUSTER, Pennsylvania 

MARILYN MUSGRAVE, Colorado 

JEB BRADLEY, New Hampshire 

STEVE KING, Iowa 

THADDEUS MCCOTTER, Michigan 

RIC KELLER, Florida 

TED POE, Texas 

MICHAEL SODREL, Indiana 

JEFF FORTENBERRY, Nebraska 

MICHAEL FITZPATRICK, Pennsylvania 

LYNN WESTMORELAND, Georgia 

LOUIE GOHMERT, Texas 

NYDIA VELA ́ ZQUEZ, New York 

JUANITA MILLENDER-MCDONALD, 

California 

TOM UDALL, New Mexico 

DANIEL LIPINSKI, Illinois 

ENI FALEOMAVAEGA, American Samoa 

DONNA CHRISTENSEN, Virgin Islands 

DANNY DAVIS, Illinois 

ED CASE, Hawaii 

MADELEINE BORDALLO, Guam 

RAU ́ L GRIJALVA, Arizona 

MICHAEL MICHAUD, Maine 

LINDA SA ́ NCHEZ, California 

JOHN BARROW, Georgia 

MELISSA BEAN, Illinois 

GWEN MOORE, Wisconsin 

J. MATTHEW SZYMANSKI, Chief of Staff 

PHIL ESKELAND, Deputy Chief of Staff/Policy Director 

MICHAEL DAY, Minority Staff Director

SUBCOMMITTEE ON RURAL ENTERPRISES, AGRICULTURE AND 

TECHNOLOGY 

SAM GRAVES, Missouri, Chairman 

STEVE KING, Iowa 

ROSCOE BARTLETT, Maryland 

MICHAEL SODREL, Indiana 

JEFF FORTENBERRY, Nebraska 

MARILYN MUSGRAVE, Colorado 

JOHN BARROW, Georgia 

TOM UDALL, New Mexico 

MICHAEL MICHAUD, Maine 

ED CASE, Hawaii 

RAU ́ L GRIJALVA, Arizona

PIPER LARGENT, Professional Staff

(II) 

C O N T E N T S 

WITNESSES

Page 

Pombo, Rep. Richard (CA-11), Chairman, U.S. House of Representatives Resources Committee ............................................................................................... 3

Wells, Mr. Mike, Chief of Water Resources, Missouri Department of Natural 

Resources .............................................................................................................. 5

McNally, Ms. Nancy Macan, Executive Director, National Endangered Species 

Act Reform Coalition ............................................................................................ 8

Peterson, Mr. Bob, President, Ohio Farm Bureau Federation, American Farm 

Bureau ................................................................................................................... 11

Wiseman, Mr. Larry, American Forest Foundation .............................................. 13

Kostyack, Mr. John, Director, Wildlife Conservation Campaigns and Senior 

Counsel, National Wildlife Federation ............................................................... 15

APPENDIX

Opening statements: 

Graves, Hon. Sam ............................................................................................. 27

Prepared statements: 

Wells, Mr. Mike, Chief of Water Resources, Missouri Department of Natural Resources ............................................................................................... 29

McNally, Ms. Nancy Macan, Executive Director, National Endangered 

Species Act Reform Coalition ....................................................................... 32

Peterson, Mr. Bob, President, Ohio Farm Bureau Federation, American 

Farm Bureau ................................................................................................. 50

Kostyack, Mr. John, Director, Wildlife Conservation Campaigns and Senior Counsel, National Wildlife Federation .................................................. 54

(III) 

(1)

THE NEED FOR IMPROVEMENTS AND MORE 

INCENTIVES IN THE ENDANGERED SPECIES 

ACT 

THURSDAY, SEPTEMBER 15, 2005

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON RURAL ENTERPRISES, AGRICULTURE

AND TECHNOLOGY

COMMITTEE ON SMALL BUSINESS

Washington, DC 

The Subcommittee met, pursuant to call, at 9:36 a.m. in Room 

2261, Rayburn House Office Building, Hon. Sam Graves [Chairman 

of the Subcommittee] presiding. 

Present: Representatives Graves, Christensen, Fortenberry, 

Grijalva, Udall

Chairman GRAVES. Good morning. I want to welcome everybody 

to this hearing. It is the Subcommittee on Rural Enterprise, Agriculture and Technology and the Small Business Committee. 

Today we are going to be discussing the Endangered Species Act 

and the need to protect individual private property rights. I do appreciate everybody’s participation in this hearing. I know a lot of 

folks have come from a great distance and I do appreciate that very 

much. 

The Endangered Species Act was created in 1973 with the purpose to recover our nation’s most endangered and threatened species. Although well intentioned, the Act has failed at its purpose, 

recovering approximately one percent of the listed species. 

However, over the span of 30 years, the scope of the Endangered 

Species Act has expanded greatly. Currently, there are a total of 

1,264 listed species, compared to just 109 when the Endangered 

Species Act was passed into law. 

Now the increased scope of the ESA is impeding on the rights of 

landowners, with 80 percent of those species dwelling on lands 

owned and operated by farmers and ranchers. 

The situation involving the Missouri River has piqued my interest in the Endangered Species Act. The Court has ruled that the 

ESA supersedes Congressional intent to provide for flood control 

and navigation along the Missouri River, which Congress enacted 

in 1944. 

This has brought great distress to the region because of the uncertainty this ruling creates. In order to protect the habitat and increase the spawning habits of protected species on the river, the 

2

Army Corps of Engineers has the authority to lower or raise water 

levels at points that would not support navigation. 

This uncertainty in river flows in the past has caused major 

shippers to cancel their Missouri River operations and has caused 

extreme alarm for farmers in the Missouri River flood plain. Missouri farmers and small business owners have to live with these 

uncertainties year in and year out. 

The financial burden this uncertainty creates is just another 

problem facing farmers in Missouri who continually face season 

after season of drought and rising energy prices. 

Shipping costs by barge traffic is the cheapest and most efficient 

form of transportation for farmers. However, if the Missouri River 

cannot support navigation, farmers will have to find other more expensive modes of transporting their goods. This additional expense 

would be detrimental to their survival. 

Farmers themselves, in my opinion, have become an endangered 

species, with only two percent of the population undertaking this 

important enterprise. 

I consider myself a conservationist. I am a farmer by trade. It is 

in my best interest to preserve the ecosystem on my property, but 

I don’t want to have to limit my harvest because of an endangered 

weed located on my property, especially when my family depends 

on a successful season. 

I would like to see the Endangered Species Act work, but it is 

time to update this broken law and improve it so we can recover 

more species while preserving the rights of our property owners. 

This is why I have introduced H.R. 3300, the Endangered Species 

Improvement Act. My bill seeks to create a voluntary program that 

provides incentives and compensation to landowners who participate in the recovery of endangered species. 

Through this bill, it is my hope that landowners’ rights will be 

preserved, more endangered species will be recovered, and a positive working relationship between the landowner and the government is going to be fostered. 

Far too often, the landowner will try to cover up the fact that the 

endangered species is located on their property. Through HR 3300, 

it is my hope that this will end and landowners will welcome the 

opportunity to recover protected species. 

Offering incentives will encourage participation and rid the negative feeling associated with the Endangered Species Act. Far too 

often, we get into ‘‘the shoot, shovel, and shut up’’ situation if you 

do find a species on your property. 

Again, it is important to me that we consider the impact of landowners, farmers, and small businesses when making plans to recover species. We must find ways to work with people and not 

against them so we can all achieve our goals. 

I think increased incentives is part of the solution. As a member 

of the Small Business Committee and Chairman of the Subcommittee on Rural Enterprise, Agriculture and Technology, I believe it is my job to see that farmers and small business owners 

are protected during the debate. 

I turn now to Mr. Fortenberry. 

[Chairman Graves opening statement may be found in the appendix.] 

3

Mr. FORTENBERRY. Not at this time, Mr. Chairman. Thank you 

very much for your support on this. 

Chairman GRAVES. Thank you very much. We have got panel 

one, which is going to be Congressman Richard Pombo, who is 

Chairman of the Resources Committee, who has jurisdiction over 

ESA, and Mr. Pombo, thanks for being here. I appreciate it. 

STATEMENT OF THE HONORABLE RICHARD POMBO, CHAIRMAN, U.S. HOUSE OF REPRESENTATIVES RESOURCES COMMITTEE 

Mr. POMBO. Well, thank you. Thank you, Mr. Chairman. I appreciate you holding this hearing and your attention to this issue. 

We find ourselves in a situation with the Endangered Species Act 

where it is a law that is generally supported by the public. Saving, 

preserving, conserving our nation’s endangered species, our wildlife, is a moral value that we as Americans share. 

The problem that we face is that with the Endangered Species 

Act, we have a law that is a failure. It has not worked in the way 

that it was originally intended when it was passed 30 years ago. 

The idea was is that we would recover species. Currently, we 

have close to 1,300 species which have been listed as endangered 

on the list, and out of that, less than 10 have been recovered. 

Of those 10 that have been removed from the list, I would argue 

that probably half of them never should have been put on the list 

to begin with because of their inadequate science that was used in 

a listing process. 

We also have a law where over three-quarters of the species 

which are listed, 77 percent, either have declining populations or 

Fish and Wildlife doesn’t know what status the species is in. 

That cannot be defended. A law such as that that is not working 

for its stated purpose is something that desperately needs to be updated. It is something that we as Congress have the responsibility 

to look at and change. 

At the same time, we have had a number of conflicts with private 

property owners and economic development because of the way 

that the Act is implemented. 

What we are trying to do in Congress right now is update the 

law, modify it so that it does a better job of recovering species. It 

puts the focus on recovery and at the same time removes some of 

the conflicts. 

One of those ways and taken from a bill that was introduced by 

you, Mr. Chairman, is dealing with the incentives. 

Right now, there is a built-in negative incentive that exists under 

the law. It is looked at as a negative if a property owner has an 

endangered species on their property, whether it is a plant, an animal, an insect, or what have you that has been listed as an endangered species. 

They see that as a negative and they do what they can in terms 

of managing the property to not attract endangered species, to not 

protect the habitat, which works exactly the opposite way in terms 

of trying to work towards recovery of that species. 

If you change those incentives, if you make it a positive for that 

property owner, you will have property owners managing their 

property differently. 

4

One of the things that we have looked at quite extensively is a 

system or a series of grants and aid and tax incentives that would 

make it possible for someone to maintain an improved habitat on 

their own property, therefore increasing the amount of habitat for 

an endangered species and have the government be a partner with 

that. 

Nearly 90 percent of the listed species have the majority of their 

habitat on private property. Because of that, the property owner 

has to be a partner. They have to be part of the solution. We can’t 

continue to do it the way that we are doing it right now. 

We have also seen and looked at other countries and the way 

that they have dealt with their wildlife and where they have had 

successes and not had successes. 

The biggest successes that we have found anywhere are ones 

that have positive incentives that make it an economic incentive for 

the property owner to conserve species and conserve habitat. That 

is the kind of thing that we need to change. 

We are also looking at in terms of the science that is used under 

the Act ways that we can improve the level of science. There is a 

lot of debate today about the level of science that is used under the 

Endangered Species Act. 

It is a much lower bar than any of our other environmental laws 

that are in force, and raising that bar so that we have greater confidence in the science it used not only makes it easier to implement 

the Act, but it also gives us much greater confidence in the recovery plans and habitat plans, habitat conservation plans that are 

adopted in order to recover those species. 

Also looking at the whole issue of critical habitat, what is actually necessary to recover a species? I think the focus needs to be 

placed on recovery and not on land use control. 

We have seen over the years the Act has become more about land 

use control and less about recovery. We are trying to change that 

focus. We are trying to put the focus on recovery, what is necessary 

to bring those species back to a sustainable population. What kind 

of things do we need to do? What habitat is necessary to make that 

happen? 

Those are the kind of things that we are changing in the law. 

We are working on a bill right now. We have been working for several months negotiating with members of the Committee, and it 

looks like within the next several days we will be able to put a bill 

together that will be introduced as a bipartisan bill with the majority of the Committee’s support and be able to move that, and that 

is the direction that we would like to go. 

Finally, I would just say, Mr. Chairman, that because of legislation like the bill that you introduced and others, we have been able 

to pull from a lot of different members a lot of different ideas as 

to ways to improve this and been able to incorporate much of that 

in the bill and the draft bill that we are working on now. 

I believe because of that, we will have the kind of legislation that 

when it becomes law is something that they can implement and it 

will actually work, which is what all of our goal is. 

So thank you for inviting me to be part of this hearing here this 

morning. I thank you for focusing the attention of the Committee 

on what is a very important issue. 

5

Chairman GRAVES. Thank you very much. I appreciate you being 

here. I know you are busy and are going to have to run off. This 

is very important to small business, and unfortunately, too many 

times, it gets in the way of businesses doing what they need to be 

doing and that is running their business. But I do appreciate you 

coming in today and testifying. 

Mr. POMBO. Thank you very much. 

Chairman GRAVES. I want to point out too for the record all the 

statements made by members and the witnesses are going to be 

placed in the record in their entirety. 

We will go ahead and seat the second panel now. Thanks, Mr. 

Chairman, for being here. 

[Brief pause.] 

Chairman GRAVES. Thank you all for appearing today. Again, I 

know some of you have traveled a long ways and I do appreciate 

that very much, coming in, and I look forward to hearing your testimony. 

What we will do is basically just let everybody give their opening 

statement. Then we will open it up for questions, which I know 

that I have a few. Propriety is fairly informal. 

We don’t use the timing mechanism. We tell everybody they have 

five minutes, but if you have something to say, I want you to say 

it and so we usually don’t depend on the timers too much. In fact, 

we don’t even have them here today. So we will see how it works 

out. 

First, we have got Mike Wells with us today. He is Chief of 

Water Resources with the Missouri Department of Natural Resources out of Jefferson City. Mike, I appreciate you being here and 

thanks for coming and I look forward to your testimony. 

STATEMENT OF MIKE WELLS, MISSOURI DEPARTMENT OF 

NATURAL RESOURCES 

Mr. WELLS. Thank you. Good morning, Mr. Chairman and the 

Committee. My name is Mike Wells, and I am Deputy Director of 

the Missouri Department of Natural Resources and the Chief of 

Water Resources for the State of Missouri. 

The Department of Natural Resources is the agency that has 

statutory responsibility to the state’s water resources. 

As Chief of Water Resources, I represent the state in all interstate water issues. I want to thank Congressman Graves for inviting me to give testimony this morning on this very important issue. 

Let me begin by saying the State of Missouri is truly concerned 

about protecting endangered species and the natural habitat along 

our rivers. 

In fact, we were one of the earliest proponents for increasing 

funding for habitat restoration projects in and along the Missouri 

River, which is an issue we continue to support. 

However, we take issue with the manner in which the Endangered Species Act is being applied in the management of the Missouri River. 

Instead of the flow changes that are being proposed, we strongly 

believe there are common sense ways to protect the species without 

harming citizens who live and farm along the Missouri River or 

who rely on the river for their livelihoods. 

6

The Missouri River is a vital resource for the State of Missouri, 

providing drinking water to over two million of our citizens, cooling 

water for our utilities, waters to support navigation, unique recreational opportunities, and a valuable fish and wildlife habitat. 

We are concerned that changes in the management of the river 

which some have characterized as necessary to comply with the 

Endangered Species Act will be harmful to many of these uses. 

In December 2003, the U.S. Fish and Wildlife Service released an 

amended biological opinion which found that the U.S. Army Corps 

of Engineers’ operations of the Missouri River would cause jeopardy 

for the pallid sturgeon, an endangered fish. 

Far too little is known about the pallid sturgeon, its life history 

and its needs. Yet, the Endangered Species Act is being administered in a very prescriptive manner when more reasonable courses 

of actions seem to be available. 

The Service has mandated certain actions based on questionable 

science and with little or no regard for the significant adverse environmental impacts and economic consequences of the action. 

These mandates include a summer low flow and spring rise. The 

Service demanded a period of low flow during the summer even 

though scientists have shown that this would produce minimal benefits for the species. 

Habitat restoration projections undertaken by the Corps of Engineers has created 1,200 acres of shallow water habitat since 2003. 

This habitat precluded the need, at least for now, for summer 

low flows. This alternative action was much less harmful to the 

other uses than the flow changes. 

In their opinion, the Service also indicated a spring rise was 

needed as a spawning cue to ensure the continued survival of the 

pallid sturgeon. 

The Service prescribed a spring rise despite the fact that fishery 

scientists had indicated that water temperature and photoperiod 

and not flow may be the controlling factors for pallid sturgeon 

spawning. 

Even today, the Service continues to insist on the manmade 

spring rise which would increase river levels by one to three feet 

during May and June. 

The Missouri River is free-flowing for more than 800 miles below 

Gavins Point Dam, which is the lowest of the six dams of the Missouri River reservoir system, to the confluence of the Mississippi 

near St. Louis. 

More than 550 of these miles are within the State of Missouri. 

Water released from Gavins Point Dam can take 10 to 12 days to 

travel this distance. 

Once water is released from Gavins Point Dam, it cannot be retrieved. Given that local rainfall has caused the Missouri River to 

rise up to 10 to 12 foot in less than 24 hours in our state, it would 

be unwise to implement an artificial spring rise that would add additional feet of water to the river during the spring. 

An artificial spring rise would compound interior drainage and 

flooding problems for our farmers and communities along the river. 

In most years, the State of Missouri already experiences natural 

spring rises. With spring being the time of the year when Missouri 

floodplain farmers are already at the greatest risk at being flooded, 

7

artificially adding even more water to the river in the spring will 

only intensify this risk. 

The Missouri River’s floodplain encompasses approximately one 

million acres in Missouri. Much of this is prime farmland. 

Any manmade or artificial spring rise that puts floodplain farmers and riverside communities at greater risk of being flooded is 

counter to the 1944 Flood Control Act. 

Congress expressly established the Missouri Reservoir System to 

control flooding, not to flood farmers. 

In light of this fact and the uncertainty about the pallid sturgeon 

needs, it is illogical for the federal government to implement a plan 

that would increase the risk of flooding. 

The Service is characterizing the artificial spring rise which they 

speculate will only benefit approximately 200 miles immediately 

below Gavins Point Dam as an experiment. The federal government should not be conducting experiments that threaten people’s 

livelihoods. 

The range of the pallid sturgeon includes over 1,600 miles of the 

lower Missouri and Mississippi River and a significant reach of the 

Yellowstone River in Montana that all have spring rises, natural 

spring rises now. 

By focusing on habitat development in and along these reaches, 

the Service and the Corps could take advantage of reaches of river 

that have more natural hydrographs. This would avoid the contentious issues related to flow while providing benefits to the pallid 

sturgeon. 

It is unreasonable for the federal government to consider a flow 

plan that may only benefit the pallid sturgeon for less than a 200-

mile reach of the Missouri River. 

A common sense application of the Endangered Species Act 

would suggest that the federal government should concentrate research and recovery efforts on the nearly 1,600 miles of river that 

already have a spring rise instead of conducting an experiment 

which could harm downstream citizens. 

Let me reiterate that the State of Missouri is truly concerned 

about protecting endangered species and natural habitat along our 

rivers, but we believe that there are common sense ways to protect 

the species without harming our citizens. We rely on the Missouri 

River for many uses. 

I thank you for this opportunity to testify and I would be glad 

to answer any questions. 

[Mr. Wells’ testimony may be found in the appendix.] 

Chairman GRAVES. Thank you, Mr. Wells. I appreciate your testimony. 

Next we are going to hear from Nancy McNally, is that correct? 

Ms. MCNALLY. That is correct. 

Chairman GRAVES. Executive Director of the National Endangered Species Act Reform Coalition here in Washington. I appreciate you coming over and I look forward to your testimony. 

8

STATEMENT OF NANCY MACAN MCNALLY, NATIONAL 

ENDANGERED SPECIES ACT REFORM COALITION 

Ms. MCNALLY. Thank you. I appreciate the opportunity to be 

here, Mr. Chairman, delegates to the Committee and Mr. 

Fortenberry. 

As everyone knows and we talked about a great deal, the Endangered Species Act was enacted over 30 years ago with the promise 

that we can do a better job of protecting our species and the habitats on which they depend. 

Today, over 30 years later, on behalf of the National Endangered 

Species Act Reform Coalition, I bring that same message back to 

the Subcommittee. We can and must do better. 

We have learned many lessons over the past three decades about 

how and what can be done to protect the endangered and threatened species. 

One of those important lessons that we have learned is that all 

too often, the ESA has created conflict where partnership and cooperation has been needed. 

N.E.S.A.R.C. is pleased to testify this morning about ways to introduce incentives into the process that will allow landowners and 

property owners to voluntarily cooperate in species protection efforts, which we continue to believe is one of the most effective ways 

to ensure that we address the species’ needs. 

We also want to take the opportunity before I go any farther to 

commend Subcommittee Chairman Graves on your leadership on 

the introduction of H.R. 3300, the Endangered Species Improvements Act of 2005. 

N.E.S.A.R.C. supports H.R. 3300, and we believe it introduces a 

critical new element to the ESA by providing financial incentives 

for landowners to develop species recovery agreements that will 

protect and restore habitat for listed and candidate species. 

We are very pleased to note Chairman Pombo testified this 

morning that he is looking to include measures like yours into the 

product that they are putting together for consideration by the Resources Committee, and we certainly have been an advocate for 

that inclusion. We think it is an important piece of legislation. 

Before I go any farther, let me step back and briefly describe 

NESARC. The National Endangered Species Act Reform Coalition 

members come from a wide range of backgrounds. 

Among our ranks are farmers, ranchers, cities and counties, 

water districts, rural irrigators, electric utilities, forest and paper 

operators, mining companies, aggregate companies, homebuilders, 

and other businesses and individuals throughout the United 

States. 

What our members have in common is that they have been impacted by the implementation of the Endangered Species Act and 

they want to update and improve the Act. 

Attached to my testimony is a NESARC white paper that was developed last year after an extensive dialogue with our members. 

We stepped back from a long debate that has been fraught with 

polarization over the years and said, what do we really need to do 

going forward? 

We have a lot of experience under the Act. We need to look at 

the successes that we have had in species protection, and we need 

9

to look at the roadblocks that we have experienced and see what 

we can take away and learn from both the successes and those failures and look for ways to improve the Act so that we can draw 

upon the successful areas and make those more the norm than the 

exception with implementation of the Act. 

We identified several key issues that our members would like 

Congress to consider, and I am going to quickly go through them 

because everyone has a copy of the white paper. 

First and foremost, we wish to expand and encourage voluntary 

conservation efforts by landowners. We found that a universal concern with the Act is that it does not fully promote and accommodate voluntary conservation efforts. 

A critical element of updating and improving the Act must be the 

development of additional voluntary conservation programs that 

encourage landowners to participate in species conservation efforts. 

These incentives can take the form of voluntary species recovery 

agreements as you have outlined in H.R. 3300, and there are a 

number of other approaches that can be adopted as well. 

We are not looking at one particular goal as incentive but believe 

we need to look at a variety of incentives that would work. Modifying existing programs like Safe Harbor Agreements is also something that the Coalition has looked at. 

Second, we believe we must give the states the option of being 

on the front line of species conservation. We need to take advantage of state and local expertise and abilities by providing more 

flexibility so that states can facilitate voluntary efforts to protect 

and enhance species population. 

Third, we believe Congress should increase funding for voluntary 

and state programs for species conservation. We need to financially 

support the voluntary programs and state and locally run initiatives that are critical to ensure species recovery. 

Fourth, we must encourage prelisting measures. We need to promote efforts like the collaborative efforts by states, local governments, and private parties to develop most recently the sage grouse 

protection program to address species’ circumstance before they 

have to be listed under the ESA. Bring the parties together early 

on and see what we can do to be helpful to the species before it 

gets to that critical point. 

Fifth, we must establish recovery objectives. Establishing recovery objectives will give us a goal to work toward, and when that 

goal is reached, the species will be removed from the list. 

Next, we must improve habitat conservation planning procedures 

and we would seek to codify the current no surprises policy. 

The HCP process has the potential to be a success story, but too 

often, property owners are stymied by the delays and the cost of 

getting approval of the HCP. 

Landowners involved in conservation efforts need to know that 

when they enter into these agreements, a deal is a deal, and that 

is why we would like to codify no surprises. 

Finally, and this should go without saying it is so obvious, we 

must ensure an open and sound decision making process. The ESA 

must be open to new ideas and data. 

We need a decision making process that allows for full public 

participation, better data collection, and independent scientific reVerDate 0ct 09 2002 15:26 Jan 12, 2006 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 G:\HEARINGS\24845.TXT MIKE
10

view to support the listing, critical habitat, and recovery provisions 

under the Act. 

While each of these elements that we have outlined is important, 

the need to encourage cooperative conservation activities by landowners deserves special attention. 

We are pleased that you are focusing in on that in the hearing 

this morning. What many people do not recognize is that protecting 

species in their habitat requires financial support, it requires time, 

it requires technical expertise. 

So we support H.R. 3300 as introduced precisely because it recognizes these complexities and addresses the key considerations that 

arise in species conservation efforts by landowners. 

Specifically, we are very pleased that H.R. 3300 takes a voluntary approach to conservation efforts. We think that is critical to 

bring landowners into these types of agreements. 

We believe that financial incentives for participating landowners 

is critical as well. One of the biggest hurdles for conservation activities is identifying ways to fund the work that must be done. 

A required element of the species recovery agreements authorized under your legislation, Mr. Chairman, is the provision of compensation by the Secretary. 

This will help ease the financial burden on landowners for developing the necessary protection and restoration activities. 

While we all recognize that funding is a difficult question, when 

we try to figure out where that funding will come from, we do believe that it is critical that as we all look towards this national goal 

of protecting species, we share in that burden of the cost. 

Finally, 3300 provides technical assistance, again, one of those 

things that probably is stating the obvious but sometimes gets lost 

in the rhetoric of the debate. 

Most landowners are not biologists and few, if any, will have expertise to independently identify the appropriate measures needed 

to help species on their property. 

Providing technical assistance, as H.R. 3300 does, and management training will increase the likelihood of enrollment and ultimately create a broader, more effective program. So we believe that 

is critical. 

For more than a decade, Congress has struggled with the question of what, if any, changes to the ESA should be made. In the 

interim, landowners and businesses have had to take the existing 

Act and make it work. 

It has been time-consuming, expensive, often frustrating, and the 

successes have been limited. While many species’ populations have 

stabilized, maintaining the status quo is just not good enough. 

We need to find a way to do a better job of conserving our species. We need to find new and more effective ways to reach this 

goal of the ESA. 

N.E.S.A.R.C. urges this Committee and the remainder of the 

House and the Senate to take stock of the lessons we have learned 

today and the successes that we have had in order to identify important improvements that are necessary to make the Act work 

better in the future. 

We appreciate your leadership in looking at the voluntary incentives as one component of that. Thank you. 

11

[Ms. McNally’s testimony may be found in the appendix.] 

Chairman GRAVES. Thank you very much. 

Next we have Bob Peterson, who is President of the Ohio Farm 

Bureau Federation, and he is here also representing the American 

Farm Bureau Federation. You come to us from Sabina, Ohio and 

I appreciate you being here. Thanks for coming. 

STATEMENT OF BOB PETERSON, OHIO FARM BUREAU 

FEDERATION 

Mr. PETERSON. Thank you. Glad to join you. I need to applaud 

you on your pronunciation. You are the only person I know that 

can pronounce Sabina correctly the first time out. 

Good morning. I am Bob Peterson. I am a grain and livestock 

farmer. I have the pleasure of serving as the President of Ohio 

Farm Bureau and then with American Farm Bureau board of directors. 

I also appreciate the opportunity to be here today to talk about 

the needs for more and better incentives under the Endangered 

Species Act. I ask that my written statement be submitted for the 

record. 

The need for these incentives is readily apparent when you realize that almost 80 percent of listed species occur, to some extent, 

on private lands. 

Almost 35 percent occur exclusively on private lands, meaning 

that they are totally dependent on the actions of private landowners for their continued existence. 

Most of these lands are agricultural lands. Cooperation of private 

landowners is essential if the Endangered Species Act is to be successful. 

Farmers and ranchers enjoy the benefits of having wildlife on 

their lands. Most farmers and ranchers are already taking measures on their own to protect listed species and habitats. They need 

the tools to be able to do it better. 

Many landowners would like to protect listed species, but the Endangered Species Act as currently written makes that difficult. 

Most farmers and ranchers are also small businessmen and businesswomen who can least afford any adverse impact from endangered or threatened species on their lands. The Endangered Species 

Act does not address the needs of many small businesspeople. 

We support H.R. 3300 because it provides a framework for an 

Endangered Species Act cooperative conservation program that addresses the needs of small businesses such as farmers and ranchers. We commend the Chairman for introducing the bill. 

The Farm Bureau has long supported the use of cooperative conservation as a way to implement the Endangered Species Act. We 

are convinced that cooperative conservation is a win, is a way to 

make the Act work for both landowners and for species, producing 

a win-win situation for both. 

The Ohio Farm Bureau plays a leadership role in collaborative 

efforts with government agencies and other organizations to develop and implement voluntary, flexible conservation programs 

that provide a wildlife habitat for land and aquatic species. 

Our sleek, environmental assessments and water quality testing 

programs have resulted in landowner engagement and a multitude 

12

of working land conservation initiatives benefiting the listed species. 

The White House recently sponsored a conference on cooperative 

conservation in St. Louis in which the American and Ohio Farm 

Bureaus participated. 

We were heartened by the commitment from the Administration’s top officials from five cabinet-level departments, the Interior, 

Agriculture, Commerce, Defense, and EPA. 

The need for greater flexibility in the Endangered Species Act 

was among the most cited changes that were needed. 

We believe that H.R. 3300 provides farmers and ranchers the 

flexibility they need to meet their land-use goals while at the same 

time providing effective protection for listed species. 

The voluntary species recovery agreements specified in the bill 

allows both the landowner and the government agency the flexibility to craft an agreement that will provide maximum benefits to 

both species and the landowner. 

A voluntary incentives-based program should be responsive to 

the needs and concerns of private landowners. 

Some are concerned with the impact the estate taxes will have 

on their ability to pass the operations along to future generations. 

Some others are concerned about maintaining a cash flow that 

would allow them to meet the bank loan payments and other obligations. Some are concerned about whether they will they be able 

to continue to operate with the listed species on their property. 

An effective program should include a choice of direct payments, 

estate tax or property tax or other tax deductions or credits or simply the removal of ESA disincentives or restrictions. One size does 

not fit all. 

Other elements that are essential parts of any cooperative conservation program include it must incorporate working landscapes 

and not be strictly a set-aside program. 

It must provide certainty to landowners, and once an agreement 

is in place, no additional management obligations or restrictions 

will be imposed. 

It must provide incidental-take protection to landowners who 

enter cooperative conservation agreements. Lands covered by cooperative conservation agreements must be excluded from critical 

habitat. 

Critical habitat designation would be a duplication in terms of 

cooperative conservation agreements. 

I thank you for holding this hearing on this important and timely 

issue. I look forward to answering any questions that you may have 

later. 

[Mr. Peterson’s testimony may be found in the appendix.] 

Chairman GRAVES. Thank you, Mr. Peterson. 

Next we have Larry Wiseman with the American Forest Foundation here in Washington. I appreciate you being here. I look forward to your testimony. 

13

STATEMENT OF LARRY WISEMAN, AMERICAN FOREST 

FOUNDATION 

Mr. WISEMAN. Thank you, Chairman Graves. Along with spending a lot of time in Washington, I spend a lot of time working with 

members of our American Tree Farm System. 

The American Tree Farm System encompasses about 80,000 individuals, families mostly, who are engaged actively in the most significant of enterprises, growing trees. 

Our members manage together about 35 million acres of America’s forest land. Together with four and a half million other individuals, they own about two-thirds of America’s forest land. 

In other words, families and individuals are the majority owners 

of America’s woodlands, not the feds, not the states, not industry, 

but families, all of them working in small enterprises in most of 

the states of the union. 

Like many small enterprises, most of the decisions that these 

folks make about their business are made around the kitchen table. 

Increasingly, as I have sat and drank tea, sweetened and unsweetened tea in various parts of the country with these folks, I 

sense a recognition among them that the decisions made in hearing 

rooms like this will have as much impact on the future of their enterprise as the decisions that they make around the kitchen table. 

For that reason, we are very pleased and honored to be here 

today, because it isn’t often that people recognize the valuable role 

that family forest owners, most of whom are not farmers, most of 

whom aren’t ranchers, play in supporting rural economies in rural 

environments. 

Indeed, fully two-thirds of the fiber that is grown to support our 

wood and paper industries in the United States are grown by these 

family enterprises. 

That industry in turn supports about a million plus jobs, many 

in rural communities, many among the most important sources of 

jobs for those rural communities. 

So what happens to family forest owners, what they can and 

can’t do, has a profound impact not just on the environment and 

the economy but also on the culture and heritage of rural America, 

so we very much appreciate the opportunity to be here. 

Most of our members, when we talked to them about why they 

own land put wildlife recreation aesthetics as their primary reasons for owning land. 

Very often, many of the folks in Ohio and elsewhere who are 

members of the American Tree Farm System will say that their 

goal is to leave the land better than they found it and then to continue that heritage of stewardship by their family. 

Many of them actually welcome the opportunity to manage for 

endangered species. What happens, sadly, as the other witnesses 

have pointed out, is that they often lack the knowledge and the 

technical skills and most importantly, the resources to implement 

the practices that are needed for these ecosystem services. 

Just to give you an example, there was an article in USA Today 

on Tuesday featuring one of our members, Judd Brooks, a tree 

farmer in Mississippi who has spent the last 30 years creating a 

beautiful forest, I have been on it myself, 2,100 acres, and he was 

managing it not just for income and an asset but also as gopher 

14

tortoise habitat, one of the critical endangered species in that part 

of the world. 

Post-Katrina, Judd’s trees were all lying on the ground, and he 

has no way of supporting the restoration that will be needed not 

just to put his enterprise back together again but to continue the 

work that he had been doing with us and with other organizations 

to protect the gopher tortoise and associated habitats. 

Whatever the motives for owning forests, family forest owners 

need cash flow. They need income to pay taxes and insurance to 

invest in the future of their land. 

If they believe that endangered species protection is going to tip 

their cash flow the wrong way, many of those who have the opportunity to sell for development at hugely inflated prices will choose 

to do so, and that is bad for the environment. 

Now some owners of course may choose that as a potential land 

use and we certainly endorse that. That is their right and perhaps 

within the context of their family or obligation. 

However, many would want to stay on the land, and they would 

view species conservation not just as something that is important 

to them but as a service they provide to the public. 

They believe that that service is not only valuable to the public; 

it is a service that is worthy of public support. Share the costs of 

endangered species protection through incentive programs. 

You are familiar with many of the incentive programs that exist 

today for forest and species conservation. They are meager. They 

are confusing. There was some $4 billion in unfunded applications 

for conservation projects last year, and of those that were funded, 

a very, very tiny fraction went towards forest conservation. 

Many of these folks just aren’t on the radar screen in some 

states. Under the EQIP program, which is the largest federal conservation incentive program, less than two percent nationwide of 

expenditures were directed at forest conservation practices. 

Given that about half the rural land in the U.S. is forested, not 

farmed or ranched, that suggests that we have a disparity that we 

have to understand. 

H.R. 3300, let me compliment you, Chairman Graves. It is the 

first time I was able to pick up a piece of legislation, read it from 

page one to page two, just two pages, and understand exactly what 

you were getting at. I was very impressed. Even I could understand 

it. 

It addresses a lot of concerns that our people have with endangered species policies. It addresses regulatory uncertainty. We like 

the notion of a contract which specifies which practices will be 

used. 

It addresses the notion of simplicity. Right now, people don’t 

know where to go, who to call. Once they get in the door to a program, there are so many applications and committees and requirements and priority listings that very often, they just say I quit. The 

program’s simplicity is an enormous virtue and one that we see 

clearly demonstrated in H.R. 3300. 

There are a few things that we would like to see improved in endangered species policy generally. Some of the issues that surface 

in H.R. 3300 that we draw your attention to, many of our owners 

plan for the long haul. 

15

They plan for 30, 40, 50, 60, 70, and 80 years and then they cross 

their fingers and hope a hurricane doesn’t come. Insurance isn’t 

available for these folks, generally. 

We appreciate that H.R. 3300 recognizes those existing operations within the context of an SRA. However, some people may 

want to change their operations, and we hope that, over time, they 

would be able to do so through an SRA that had some flexibility 

in that regard. 

Model agreements, that is an interesting idea. It is a tough one, 

I think, one that we would counsel some flexibility for. 

A lot of different species are out there and management practices 

will vary from region to region, state to state, even site to site, so 

some flexibility needs to be built into that. 

The length of the agreement, five years, is short. Our members 

are deeply interested in not obligating their great, great, great, 

great-grandchildren to agreements that they make tomorrow. 

So perpetuity is obviously too long, but five years may be a term 

not quite long enough to address some of the species’ considerations 

that have to be addressed at the forest level. 

Lastly, I’m worried about outreach and education. Although the 

witnesses have talked about the importance of technical assistance 

and resources, currently the Department of Interior, Fish and 

Wildlife Service has lowered the funding available for outreach and 

education, focusing their dollars on acres restored on particular 

properties. 

That is easy to count. Acres are easy to count, but in so doing, 

by not funding outreach and education, they undermine one of the 

most important ways that new practices and new technologies 

move from place to place in rural America, and that is the peerto-peer mentoring and the outreach and education that can magnify an investment in 100 acres through a change in practices on 

10,000. I would encourage you to think of that as you continue. 

With that, sir, let me thank you for the opportunity to testify on 

behalf of our 80,000 members. 

Chairman GRAVES. Thank you very much, Mr. Wiseman. 

Next we are going to hear from John Kostyack, who is the Director of the Wildlife Conservation Campaign and the Senior Counsel 

for the National Wildlife Federation here in Washington, is that 

correct? I appreciate you being here very much. Thank you. 

STATEMENT OF JOHN KOSTYACK, NATIONAL WILDLIFE 

FEDERATION 

Mr. KOSTYACK. Thank you for having me, Chairman Graves, and 

Chairman Graves, Congressman Udall, Congressman Grijalva, and 

Delegate Christensen, I really appreciate the opportunity to testify 

today. 

The bill that is the focus of this hearing, H.R. 3300, the National 

Wildlife Federation believes is an excellent starting point for addressing the needs for better endangered species conservation incentives. 

We support this bill, subject to a few suggested improvements, 

which I would like to get into in my testimony today. 

16

First, I would like to address some of the myths and facts about 

the Endangered Species Act and its accomplishments, because that 

is how we opened up the hearing. 

We heard Mr. Pombo stating that the Endangered Species Act is 

a failure and that it is sort of the predicate for everything we do 

from here. 

That is contrary to the data. We have been researching this 

issue, studying it, looking at it, talking to people around the country who are implementing this law, looking at the statistics generated by the U.S. Fish and Wildlife Service and NOAA Fisheries, 

and it has been a remarkably successful law, especially considering 

the limited resources that have been provided, as we have heard 

from the previous witnesses. 

Here are three crucial facts based completely upon U.S. Fish and 

Wildlife Service statistics that no one has contested. 

Roughly 99 percent of the species ever protected by the Endangered Species Act are with us today. In large part due to the Endangered Species Act, they have been kept from disappearing into 

extinction. They were headed toward extinction. The Endangered 

Species Act came along. Today, they are here for our children and 

our grandchildren. 

Number two, of the species whose condition is known, 68 percent 

are stable or improving. Mr. Pombo focused heavily upon the unknown condition as in one whose condition is unknown, blamed 

that on the Endangered Species Act, assumed all of those are headed to extinction. 

Well, the fact is the fact that we don’t know the condition of 

some species is not the fault of the Endangered Species Act. In fact, 

the Endangered Species Act has spurred more research on wildlife 

than any other law or program, but we have a situation where 

there is inadequate funding, and that is not the fault of the Endangered Species Act that we don’t have the funding needed to identify 

the condition of those remaining species. 

The third statistic is perhaps the most important one. When species are protected by the Act, their condition stabilizes and improves over time. 

In other words, yes, you can find a significant number of species 

that are declining in the five or 10-year period after listing, but if 

you look at the period over time, if you look at the individual fiveyear segments, every time you look at another five-year segment, 

you find that more and more species are joining those categories 

of stable and improving in the Fish and Wildlife Service recovery 

reports. That is fundamental. The Act is working. 

Now we have wildlife icons such as the gray wolf, the Yellowstone grizzly, our nation’s symbol, the bald eagle, and these are 

major success stories with increase in populations thanks to the 

Endangered Species Act that we should all be celebrating. 

We have other species like the whooping crane, black-footed ferret, California condor that at the time they were listed by the Endangered Species Act, they were at the absolute brink of extinction. 

Today, their numbers are rebounding where you can go out 

there, and I have done with my kids, go out there and enjoy these 

species, and it is another thing that we should be out there celebrating. They were on a glide path to extinction when the EndanVerDate 0ct 09 2002 15:26 Jan 12, 2006 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 G:\HEARINGS\24845.TXT MIKE
17

gered Species Act came along. We have turned them around. Let 

us celebrate that fact. 

It is not just the species. We have habitats that benefit. The ecosystems that people depended upon, not just wildlife, for drinking 

water, clean air, flood protection, quality of life, recreation, these 

remain functional, oftentimes in large part to the Endangered Species Act. 

The critics of the Act were focusing primarily on a single statistic, the fact that only a handful of species have recovered to the 

point where they can be delisted, but the main factors that lead to 

the fact that we have not gotten to recovery and delisting for most 

species are ones that are unrelated to the performance of the Endangered Species Act. 

There are three. One, inadequate funding. We heard about it 

from all these witnesses. It is a perennial problem. 

Two, slow biological processes. If the reproductive phase of a species in wildlife is 50 years, then you can’t expect to turn that species around in 10 years. 

Most species, the median amount of time they have been on the 

endangered species list is 15.5 years, and if you look at the recovery plans of all the listed species, the experts on these species are 

all saying median time for recovery 30, 40, 50-year range. 

So to blame the Endangered Species Act on the fact they have 

not gotten to the point of recovery and delisting is just ignoring 

that biological fact. 

Finally, the Endangered Species Act contemplates in a very common-sensical way that if you are going to remove the protections 

of the Endangered Species Act due to recovery, you need to have 

adequate regulatory mechanisms in place so the species doesn’t immediately slip back toward extinction and completely squander all 

the investment we made in that recovery. 

It is not the fault of the Endangered Species Act that we do not 

have an alternative safety net in place for so many species that are 

approaching the point of recovery. 

So these are all factors beyond the control and influence of the 

Endangered Species Act that makes it essentially a difficult but 

right now inalterable fact that we don’t have a lot of species 

delisted. 

Now let us talk a little bit about H.R. 3300, because I really do 

want to focus on what is positive. Today, we have a bill that I 

think is extremely encouraging. 

The Endangered Species Act certainly would benefit from Congressional attention in certain areas, and the area where attention 

is most needed is the very area targeted by H.R. 3300, the lack of 

sufficient funding and technical assistance for private landowners 

and others who are interested in carrying out recovery actions. 

The Act does have a number of provisions calling for recovery actions, but it doesn’t specifically address the need that we just heard 

from these other witnesses, the farmers, the private landowners, 

small businesses who are particularly on working landscapes who 

want to help make recovery happen but lack the funding and the 

technical know-how to do so. 

18

This is crucial, because as we have heard from the other witnesses, roughly 80 percent of all the listed species rely in part on 

private lands for their survival and recovery. 

Leaving those habitats alone is just not enough. Protecting them 

from harmful activities won’t do it. For most endangered species, 

we are going to need active restoration and management. That 

means lighting prescribed fires; removing invasives; building wildlife crossings over roads that are leading to so much mortality and 

fragmenting habitats; planting, repairing, and vegetation. 

These measures are all costly. Private landowners and others are 

not likely going to be able or willing to take them without a helping 

hand from the government. 

So, for that reason, National Wildlife Federation supports H.R. 

3300 with a few modest changes, because this is the bill that addresses that fundamental challenge we have. 

But there are five changes we would like to recommend, and I 

will go through them quickly. I go into them in much more detail 

in our written testimony. 

First and perhaps most important, the species recovery agreements, which I think is a great concept, that has to be a line with 

the recovery plans that are already being prepared and approved 

pursuant to Section 4[f] of the Endangered Species Act. 

The way the bill is written right now, the Secretary conceivably 

could be approving agreements that are completely at odds with 

the recovery plan. 

Recovery plans are the blueprint that are supposed to be directing all of our resources to the management and restoration of these 

species. The last thing we want to do is jeopardize the investment 

we have made in the recovery plans. Oftentimes, they are prepared 

over a series of years, enormous stakeholder involvement from conservation and industry groups, lots of resources. 

We don’t want to then start approving agreements that are inconsistent with what was just completed in the recovery planning 

process. We would recommend that the SRAs be aligned with recovery plans. 

Second, the role of states should be acknowledged by simply including them among the qualified recipients of species recovery 

agreements. 

They are often in virtually every state the crucial player in management and restoration of imperiled species, and they should be 

on the ground floor of this species recovery agreement innovation. 

Third, the language relating to integrated with existing operations, we think that is an unnecessary limitation. 

I think consistent with what some of the other witnesses were 

saying, species recovery agreements are completely voluntary, and 

so there is no reason to place that limitation on the types of SRAs 

that landowners can proceed with. 

Fourth, and this is perhaps an oversight, the two types of species 

that are currently qualified to benefit from these agreements are 

listed and candidate species, candidates presumably because they 

have already been deemed warranted for listing. 

But there is another category of species that also have been 

deemed warranted for listing known as the proposed for listing catVerDate 0ct 09 2002 15:26 Jan 12, 2006 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 G:\HEARINGS\24845.TXT MIKE
19

egory, and we suggest they be added as well. We think that is a 

pretty minor and technical amendment. 

Finally, just for not only good government, but to benefit landowners, we think there ought to be a database at least on the 

Internet, perhaps available in paper or hard copies as well, of all 

species recovery agreements that are approved. 

That is basically going to be the knowledge base that landowners 

and conservationists can turn to to build on for their own innovations and also hopefully will improve transparency, which we have 

been lacking in a lot of these grant programs and ensure the tax 

dollars are wisely spent. 

Let me just wrap up. We are hopeful that H.R. 3300, with these 

targeted improvements, will herald a new era in species conservation. 

It is going to take meaningful funding. It is one thing to authorize. You then need to follow up with the appropriations, and when 

I heard that number about 4 billion, my jaw dropped, but I guess 

it shouldn’t be too surprising to have $4 billion worth of conservation projects waiting out there that are unfunded, and that is significant. That needs to be addressed. 

But if we want to save our nation’s endangered wildlife for future 

generations, we are going to have to lend a helping hand to private 

landowners, so we commend Chairman Graves for moving forward 

this bill. 

At the same time, we just want to leave with one cautionary 

note. Congress cannot think that it can use these voluntary incentive programs to replace the safety net protections of the Endangered Species Act. It is these mandatory protections that help to 

keep hundreds of species from disappearing into extinction. 

They have fostered collaborate exercises all across the country 

that would never have happened without the Endangered Species 

Act. 

In fact, one of them is on the Missouri River. We have had a 

multi-state, basin-wide collaboration to save that river, to essentially keep it a living river, that perhaps would never have happened without the Endangered Species Act. 

So the only way to make the Endangered Species Act work and 

to have a productive Endangered Species Act reauthorization debate is to recognize the tremendous value provided by both the voluntary incentive programs and the Act’s safety net features. 

Thanks for the opportunity to testify. I would be happy to answer 

questions. 

[Mr. Kostyack’s testimony may be found in the appendix.] 

Chairman GRAVES. Thank you, Mr. Kostyack. 

I do have a couple of things I want to get some clarification on 

with the various parts of the testimony, and I am going to start 

with Ms. McNally. 

You mentioned the safe harbor agreement. Could you explain 

that in a little bit more detail? 

Ms. MCNALLY. Sure, Mr. Chairman. There are two policies that 

were put in place during the Baffid Administration, safe harbor 

agreements and the notice to parties of policy, both of which would 

give the landowner some certainty that when they enter into an 

20

agreement with the government for protection of a species and its 

habitat that that would be protected for a period of time. 

Again, one of the things we personalize with businesses today is 

that landowners need some certainty. One of the things that we 

hear when we go out and talk to folks about this is, as you have 

heard from witnesses today, we want to protect the species. 

We want to be good stewards. We want to be able to do the right 

thing, but we need to know what the right thing is, and we need 

to know if we ask to delay and we delay that we are not going to 

get in trouble for it or find out later that we should have done C 

or D. 

So they are agreements that are administrative policies now that 

are in place that would bring some of that certainty to this process, 

and our members have worked over time to codify this and will be 

working on the policies. 

Chairman GRAVES. Could you also explain, you talked a little bit 

about and touched on it, the prelisting and how it would improve 

the ESA? 

Ms. MCNALLY. One of the things that we have often talked about 

and I think John would actually agree with this is that the Endangered Species Act is when a species is in crisis, then we look at 

putting in place a lot of regulatory mechanisms to protect that. 

Frankly, that is where a lot of our conflict arises as we go forward. The ultimate goal and I think everybody agrees that the ultimate goal is to make sure that we do as good a job as possible of 

preserving the species and preserving the habitat where necessary 

to preserve the species. 

Let us get ahead of the curve. Let us not wait until we are in 

that crisis situation where all the regulatory mechanisms have to 

come into place. 

So, for instance, with the sage grouse, which you will assess potentially I think it was listed in 13 states, with a lot of regulatory 

restrictions. 

The landowners came together, the property owners, the states, 

the local governments, and they worked with the federal government to say how can we put into place now a program that we all 

agree will help protect the sage grouse going forward before we get 

to that point where it has to be listed and triggers all the regulatory mechanisms. 

That has been incredibly successful. If you bring people around 

the table at the beginning of the process and invest them in the 

process where they feel like they are part of decision making in 

terms of what to do to protect the species, you not only get a great 

deal more investment from the landowners in the process, I believe 

you get a better outcome for the species. 

One of the things that people have chafed against is feeling like 

once the Endangered Species Act’s hammer, for lack of a better 

word, comes down, that they don’t want to be subject to it. They 

don’t want to deal with it. 

If you make them a part of the process before the species is listed, I think you just have a much better atmosphere going forward 

with a lot better results for the species. So we would like to see 

those types of actions implemented going forward. 

21

Chairman GRAVES. Mr. Wells, you mentioned and we all know it 

is at least those of us in Missouri know, the changes to the Missouri River and the drastic changes in terms of what we are doing 

with flow. It is affecting the entire river from one end to the other, 

you know, and we are doing that, those drastic changes, for basically and you mentioned the 200-mile stretch. 

You might explain that in a little bit more detail what is taking 

place and what they are hoping for. Just a little bit more detail. 

Mr. WELLS. Okay. Well, as I mentioned, in the State of Missouri, 

you know we are in the lower river, especially where the Platte 

River comes in in Nebraska, which is about 200 miles below Gavins 

Point Dam, which is the lowest dam. 

We get a significant spring rise every spring. So we have a 

spring rise there. That is the spawning cue for the pallid sturgeon, 

and then from that point where the Platte comes in all the way 

down the Mississippi and Atchafalaya actually, its all the range for 

the pallid sturgeon. 

We have at least 1,600 miles of river already available. We just 

need to work on habitat and find out what we need to be doing in 

this part of the river. 

Let us do our experimenting here where we already have natural 

spring rises. Let us not do the artificial spring rise. 

The area right below Gavins Point Dam right now, again, is 

about 200 miles before it hits the Platte River is the area we are 

focusing on now. 

We have been told this is a controlled experiment. In other 

words, you can release water out of Gavins Point Dam at a certain 

time of the year and all the researchers can be lined up to see what 

it looks like when this comes out. 

It is a little more difficult, obviously, down on our part of the 

river around Jefferson City and Boonville in those areas where you 

don’t know when you are going to get the rise, so you have got to 

be out there all the time during the spring of the year and monitoring. 

So I think that is part of the difficulty, but it also puts our farmers and our cities at a greater risk of being flooded. 

Just a good example, this spring, as you well know, the river was 

very low for a period of time, and then late May, early June, we 

had a significant rise, about 12 foot at St. Joe overnight in the middle of May, and it stayed there for an extended period of time. 

During that period of time, we had quite a bit of local rainfall. 

It didn’t go over any levees, so we didn’t flood anybody out by going 

over levees, but our drainage gates were closed. 

From the time we got the rain on the Tarkio and some of the 

other tributaries, all this water backed up, and we estimated we 

lost or damaged about 100,000 acres of crops in the spring from the 

natural spring rise. 

So that is the fear that our people downstream have with it. If 

you add an additional increment of water on that or if you extend 

that period of time, you just increase the risk of flooding. 

Chairman GRAVES. Is anybody paying attention to the interior 

drainage issues? You know, when a lot of people think about what 

is being done to the Missouri River, for instance, they think just 

in terms of that river, that it is just going to affect that river. 

22

You touched on interior drainage. The fact is we have tributaries 

that are flowing into that river everywhere, and they do back up. 

Those flood gates close or whatever tributary it is just backs up 

and water, for the most part, you know, doesn’t move. 

It does backflood all of those areas, and nobody seems to be paying a whole lot of attention to that. It affects people, miles and 

miles off of the Missouri River just from the backup of those interior drainages. Is anybody studying that? 

Mr. WELLS. Well, I don’t know how much studying is being done. 

One of the things that our staff did this spring and summer in collaboration with the Missouri Levee and Drainage District Association, we went out and tried to get elevations on as many of the outflow pipes as we could and tried to then talk with the people that 

live along the river who understand the river and know what stage 

say at St. Joe their gates start to close. 

So we developed what we called interior drainage constraints. In 

other words, when the river is at a certain stage, the gates start 

to close, and one of the things we have always been concerned 

about is that you can look downstream and the river can be down 

and say well, this is a good time to release water. It affects St. Joe 

in that it takes about four days for it to get there. But we do have 

a pretty good forecast. So one of the things we said, look at the 

seven-day forecast and let us include interior drainage constraints. 

If we are going to have to do a spring rise and obviously we are 

still opposed to a manmade spring rise, but if we have to do one, 

let us look downstream and look at the interior drainage situation, 

see where the river stages are, and we can provide that information to the Corps of Engineers and Fish and Wildlife Service. 

I think it needs to be fine-tuned obviously. Because we worked 

this summer, we didn’t have time to really maybe fine-tune it as 

much as say we could, but they have that information. We provided 

them what we call interior drainage constraints, so that information is available. 

Chairman GRAVES. Mr. Grijalva. 

Mr. GRIJALVA. Thank you, Mr. Chairman. 

Just a brief comment and a couple of questions just for my clarification. 

I want to thank the Chairman for the opportunity to deal with 

a piece of legislation that opens up the opportunity for party agreements in terms of species recovery. 

I think that is a good opportunity. Aside from all of the rhetoric 

that we are hearing all over the place about the Endangered Species Act, this does open a door for opportunity and I appreciate that 

very much. 

On the Endangered Species Act itself, I believe very strongly that 

the Act has a strong legacy in this country, a legacy of good work. 

It is a necessary Act, and this discussion today is not to replace 

the Endangered Species Act but to open up for voluntary agreements between parties, and I think that is a good opportunity. 

I was just going to ask, if I could, Ms. McNally, just one question. 

Ms. MCNALLY. Mm-hmm. 

Mr. GRIJALVA. In your view, as the species recovery agreement 

that is outlined in H.R. 3300, back to my point, do you think that 

replaces ESA, in your opinion? 

23

Ms. MCNALLY. Absolutely not. 

Mr. GRIJALVA. So if a landowner or business doesn’t participate 

voluntarily in a recovery or let us say the Secretary doesn’t acknowledge that species recovery agreement— 

Ms. MCNALLY. It would continue to be subject to the same— 

Mr. GRIJALVA. Okay. All right. Thank you. Those are my questions. Thank you, sir. 

Chairman GRAVES. Dr. Christensen? 

Dr. CHRISTENSEN. Thank you. I am not a member of this Subcommittee. I am a member of Small Business, but as ranking on 

Parks Subcommittee on the Committee of Resources, I really wanted to be here to hear the testimony on H.R. 3300, which seems to 

be a modest proposal that might provide another tool to protect endangered species while giving more protection to private property 

land rights. 

But we have to be concerned because the Act is important and 

has a great legacy that we don’t weaken it in the process. 

I wanted to just highlight two of the problems, one of which Mr. 

Kostyack mentioned, but two of the biggest problems that I think 

we face with Endangered Species Act are one, the funding. 

In 2003, the Fish and Wildlife Service had said that approximately 153 million would be needed to address the current backlog 

of listing and critical habitat obligations, and our budget for 2006 

is just 18.1 million for the listing and critical habitat designations. 

In addition to that and probably related, we are very behind on 

critical habitat designations and recovery plans so that only 38 percent of those listed have both. 

So we are really behind, and I wonder if this is not more of a 

problem than the types of requirements that are placed on landowners. 

I guess I would have two questions. One is to you, Mr. Wells, because you raised the issue about the pallid sturgeon and perhaps 

that we are not looking at the entire river that could help the sturgeon to survive and protect its life and its habitat. 

In that area, is there a critical habitat designation and a recovery plan in place? Because you question the science and— 

Mr. WELLS. Yes, there is. I don’t know all the details about it, 

but I think that most would agree and even the people who have 

worked on it that it needs to be updated. I think it is dated. It just 

appears that in the last five or six years we have really started to 

do quite a bit of research on the pallid sturgeon, and there is a lot, 

as the scientists say, there is a lot more we don’t know about the 

life cycle of pallid sturgeons than we do know. 

I think that is one of the things that concerns us most is we have 

got various prescriptions of I guess measures being proposed here 

or being mandated, not proposed, when there are a lot of things we 

don’t really know yet about it. 

So we do support additional research I think and probably an updated recovery plan. 

Dr. CHRISTENSEN. Has the Fish and Wildlife Service been consulted on this? Because in preparing recovery plans, they go 

through a peer review process with independent peer reviews and 

the GAO has cited that their process is sound. 

24

Mr. WELLS. Well, just to give you an example on the Mississippi 

River, we deal with both Missouri and Mississippi obviously in our 

state, the recovery plan on the Mississippi is much more precise, 

if you will and the accomplishments are greater there. They have 

accomplished more. 

So I think we are just, on the Missouri, we are just behind a little bit in getting to the point of understanding the species and getting a recovery plan that is perfect today. 

Dr. CHRISTENSEN. Thank you. I think, you know, some kind of 

consultation with the Fish and Wildlife Service, you know, perhaps 

could end up in resolving some of those. 

Again, back to wanting to be certain that we are not weakening 

the Endangered Species Act, my original plan was to ask is the 

critical habitat conservation agreement more stringent than the 

species recovery or not, but Mr. Kostyack made several recommendations, one of which is that any SRA meet the requirements of the established recovery plan under ESA. 

Do any of you have any disagreement with that proposed amendment, or do you have any disagreement with having any voluntary 

species recovery agreement be required to meet the established recovery plan under ESA? 

Ms. MCNALLY. I don’t believe so on its face, although I would like 

to reflect on that and we have to look at first of all the species that 

don’t currently have recovery plans and not tie it to the fact, not 

make it contingent upon a recovery plan, because we certainly 

want to be able to have species recovery agreements even for those 

species lacking recovery plans. 

Mr. WISEMAN. I would concur with that. One of the other factors 

that would have to be considered in aligning these SRAs with the 

recovery plans is very often the recovery plans cover large landscapes, and most of the folks who are going to be affected by this 

bill own very small tracts, and the scope and scale issues that arise 

when you try to take a plan that was designed for 100,000, most 

people, hundreds of thousands of acres, and apply it to a, you 

know, 40-acre tract are pretty daunting. 

You have to take that into account as you try to see how best 

to align the two, but clearly you want everybody to be pulling in 

the same direction. 

Dr. CHRISTENSEN. Well, my concern also, Mr. Chairman, would 

be given the fact that it requires some funding associated with this 

bill and we are behind in funding for the requirements in the ESA, 

I just wonder if the funding is not there, the bill does no good. 

It requires incentives, and I just have some concerns about funding this proposal given the fact that we are not funding what is required under ESA presently. 

Chairman GRAVES. Mr. Peterson, will you talk to me about critical habitat and how that affects a farming operation, in particular 

if you obviously have a threatened or endangered species or the 

critical habitat to support that particular species? 

Mr. PETERSON. It certainly has the ability to stop your farming 

on your farm. Can the government take without the opportunity to 

be paid for that taking? 

My father and brother certainly don’t have the number of endangered species in Ohio as is in the west, but it certainly has the poVerDate 0ct 09 2002 15:26 Jan 12, 2006 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 G:\HEARINGS\24845.TXT MIKE
25

tential if you own a 100-acre tract of land that you farm, there is 

an endangered species there and the demand to the claim is large 

enough that you would not be able to farm. 

I would like to suggest that maybe a better way to handle some 

of that is what we are doing in Colorado. We have the mountain 

clover where a farmer is willing to open up their ground and say 

let us find them, show us where they are and went through and 

they flagged all the mountain clover, and they have allowed the 

farmer to farm around those nests, preserving the nests, making 

sure the habitat was there for the animal to continue to survive 

and thrive in an agricultural landscape. 

It also allows the farmer to continue to farm in that area, continue to work his land. I think that is important. 

Probably the best thing that happened in the process was the 

farmer had to buy in. There is buy-in and interest in preserving 

the habitat and so that is important. 

Chairman GRAVES. This program or at least what I am proposing 

I think fits in very well with exactly what you just pointed out. 

That is a good example. That is a real good example. 

I do think that we need incentive programs rather than, the situation we have now, because it is a taking is what it is in many 

cases. It is exactly that, and many times you have a business or 

a farm that that is their livelihood and the success of their operation depends on being able to work that property. 

Then when they are told they can’t do that, the responsibility becomes the recovery rather than the operation. It is a problem. 

Dr. Christensen, do you have any more? 

Dr. CHRISTENSEN. No. 

Chairman GRAVES. Well, I appreciate everybody coming in today 

very much. I know many of you traveled a long ways. 

This issue has become very important to me because of what is 

happening back home on the Missouri River and what is going on 

particularly with interior drainage. 

Very few people are actually taking a close look at that, and a 

lot of folks don’t realize that when you implement procedures that 

it affects a lot more folks than maybe those, in the river’s case, 

than those directly alongside the river. 

It affects miles and miles back up, and then when you have got 

government agencies that can’t even figure out which direction or 

they are arguing over which direction, in this particular case, Forest or Fisheries and Wildlife and the Corps of Engineers, they can’t 

come to an agreement on what should happen. Then you have even 

more uncertainty and a lot of landowners that don’t know what to 

do. 

But I have become very involved in this issue and we would like 

to find some sort of common ground. It doesn’t have to be all or 

nothing. 

That is the reason we came up with the incentive program, and 

we will continue to work to make it workable and include it hopefully in the ESA reauthorization, with Chairman Pombo. We are 

working with him on that, and again I do appreciate all your input. 

Please stay close to this process and give us your suggestions. I 

do appreciate it. Thank you all for coming in, and this hearing is 

adjourned. 

26

[Whereupon, at 10:54 a.m., the Subcommittee was adjourned.]

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